Friday, April 09, 2010

Justice Stevens Retires!

The New York Times article on Justice Stevens' announcing his retirement from the Supreme Court. Here is his letter to President Obama, stating he has

"concluded that it would be in the best interests of the Court to have my successor appointed and confirmed well in advance of the commencement of the Court’s next term” in October.

Mr. Obama, appearing in the Rose Garden Friday afternoon after returning home from a trip to Prague, pledged to “move quickly” to name a successor who, he said, would possess qualities similar to those of Justice Stevens: “an independent mind, a record of excellence and integrity, a fierce dedication to the rule of law and a keen understanding of how the law affects the daily lives of ordinary people.” Mr. Obama said he wanted someone who, like Justice Stevens, “knows that in a democracy, powerful interest must not be allowed to drown out the voices of ordinary citizens.”

The president said he had spoken briefly to the justice, and had thanked him for serving his country. “He will soon turn 90 this month,” the president said, “but he leaves his position at the top of his game.” (snip)

The White House has been quietly evaluating potential nominees for months. Among those rumored to be in contention for the nomination are Solicitor General Elena Kagan and several appeals court judges, including Diane Wood and Merrick Garland.

A soft-spoken Republican and former antitrust lawyer from Chicago, Justice Stevens has led liberals on a court that has become increasingly conservative. He was appointed by President Gerald Ford in December 1975 to succeed Justice William O. Douglas, who had retired the month before. He is the longest-serving current justice by more than a decade.

Before joining the Supreme Court, Justice Stevens had been an appeals court judge. He served in the Navy in World War II.

He joined the court when it included Thurgood Marshall and William J. Brennan Jr., who along with Justice Douglas had been liberal stalwarts of the Warren court era. Also serving were Lewis F. Powell Jr., a Nixon appointee who voted with the court’s conservatives on criminal justice issues but was a strong supporter of abortion rights, and Potter Stewart, the last of President Dwight D. Eisenhower’s four Supreme Court appointees, who, like Justice Stevens, was a moderate Republican from the Midwest. (snip)

Confronted with a court far more conservative than the one he joined, Justice Stevens showed the world what his colleagues already knew: that beneath his amiable manner lay a canny strategist and master tactician, qualities he used to win victories that a simple liberal-conservative head count would appear to be impossible. A frequent dissenter even in his early years on the court, he now wrote more blunt and passionate opinions, explaining on several occasions that the nation was best served by an open airing of disagreements.

Justice Stevens’s stature as the bench’s unlikely liberal voice grew greater as the Bush administration’s policies on terrorism and detainees translated into a string of cases that came before the court, and as the court itself moved further to the right, as Chief Justice John G. Roberts Jr. succeeded Chief Justice William H. Rehnquist in 2005 and Justice Samuel A. Alito Jr. took the place of Justice Sandra Day O’Connor the following year. Though he now found himself more often in the minority than any of his colleagues, Justice Stevens nevertheless helped shape the majority for a number of important decisions.

Justice Stevens’s plainspoken style has characterized the last years of his tenure. In cases involving prisoners held without charge at the American naval base at Guantánamo Bay, Cuba, and the mentally retarded on death row, his version of American justice propelled by common sense and moral clarity commanded a majority.

In perhaps the most significant case, Hamdan. v. Rumsfeld, he repudiated the Bush administration’s plan to put terrorism suspects held at Guantánamo on trial by military commissions. He concluded his 72-page majority opinion with the blunt statement that “the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.”
(quoted from the Times article). A very nice piece just popped up on NYTimes "End of an Era for Court and Nation.". In part, it reads:
The conventional view is that his leftward drift was a bitter disappointment to his sponsors. Mr. Ford had certainly cared about judicial ideology: As a congressman in 1970, he led the failed attempt to impeach Justice William O. Douglas for being too liberal, saying he had endorsed “hippie-yippie-style revolution.”

But Mr. Ford remained a fan of Justice Stevens.

“I am prepared to allow history’s judgment of my term in office to rest (if necessary, exclusively) on my nomination 30 years ago of John Paul Stevens to the U.S. Supreme Court,” Mr. Ford wrote in 2005.

There is some truth, backed by evidence in the political science literature, that Justice Stevens moved to the left over time. But there is also support for his view that it was the court that moved to the right.

In an interview last week, he said that every one of the dozen justices appointed to the court since 1971, including himself, was more conservative than his or her predecessor.

“We’ll wait and see to see if the most recent change fits that,” he said of Justice Sonia Sotomayor, who joined the court last year. “But prior to Sonia’s joining the court that was true with the possible exception of Ruth Ginsburg.”

Justice Stevens’s retirement gives President Obama a second opportunity to name a justice, and it means the nation is likely to see a confirmation battle for the second summer in a row.

But if Mr. Obama chooses another liberal, it will not alter the fundamental ideological balance on the court. Nonetheless, the loss of Justice Stevens’s personal charm, canny tactics and institutional memory can only leave the court’s more liberal wing in a weakened position.

Justice Stevens, who will turn 90 on April 20, is the longest serving member of the current Supreme Court by more than a decade. He became the senior justice in 1994 with the retirement of Justice Harry A. Blackmun.

That position matters. When the chief justice is not in the majority, the senior justice in the majority is given the power to assign the majority opinion. For the last decade and a half, that justice has almost always been Justice Stevens, and he has used the power with patience and skill to forge and maintain alliances in major liberal victories, often locking in Justice Anthony M. Kennedy’s swing vote by assigning the opinion to him.

Justice Stevens played a significant and often behind-the-scenes role in cases involving affirmative action, abortion rights and executive power. He grew disillusioned with the death penalty over the years, announcing in 2008 his conclusion that the death penalty violates the Eighth Amendment. But he went on to say that his conclusion did not justify “a refusal to respect precedents that remain a part of our law.”

And he wrote major dissents in two of the court’s most hard-fought recent 5-to-4 decisions, one ruling that the Second Amendment protects an individual right to own guns, the other that corporations may spend freely in candidate elections. In that second case, Citizens United, Justice Stevens for the first time showed his age on the bench, stumbling a bit as he read a 20-minute dissent.

But for all his influence, he was never well known to the public. When Americans were asked to name members of the Supreme Court in public opinion surveys, his name was routinely the least likely to be mentioned.

Justice Stevens was born to a prominent Chicago family that operated what was then the largest hotel in the world, the Stevens Hotel, with 3,000 rooms. During the Depression, the Stevens family struggled to stay afloat, and Ernest Stevens, Justice Stevens’s father, was charged with embezzling from the family’s insurance business.

He was convicted in 1933, but the conviction was overturned by the Illinois Supreme Court the next year. The wrenching experience informed the young John Stevens’s thinking about criminal law, and he was alert in his Supreme Court decisions to the possibility of prosecutorial misconduct and wrongful convictions.

Mr. Stevens attended the University of Chicago and Northwestern University School of Law. In between, he served in the Navy in World War II, signing up on Dec. 6, 1941. “I’m sure you know how the enemy responded the following day,” he likes to say, referring to the Pearl Harbor attack. He earned a bronze star for his work as a code-breaker.

After law school, he served as a clerk to Justice Wiley B. Rutledge Jr., the last of President Franklin D. Roosevelt’s appointees. Turning down an offer to teach at Yale Law School, Mr. Stevens returned to Chicago to practice law, specializing in antitrust cases. His career in private practice was punctuated by stints in government service, including as counsel to a special commission of the Illinois Supreme Court that led to the resignations of two state supreme court justices.

President Richard M. Nixon appointed him to the United States Court of Appeals for the Seventh Circuit, in Chicago, in 1970.

Justice Stevens maintained an active life outside the court, and did much of his work from a home in Florida, for years piloting his own plane there and back. He loved tennis, golf and bridge. (snip)

Justice Ruth Bader Ginsburg said that a secret to Justice Stevens’s outsized influence is the speed with which he provides useful comments on other justices’ draft opinions.

He took pride, he said last week, in writing his own first drafts.

“I really think it’s a good practice because you will find sometimes that it won’t write, and then you have to start over,” he said.

He wrote more than 600 dissents over the years, and he said last week that he felt an obligation to clarify points of disagreement. “There is a duty to explain your position if it isn’t the same as the majority,” he said, “and it’s just part of my thinking about what a judge should do.”

Justice Stevens never joined the “cert. pool,” the arrangement under which the justices share their law clerks and have them produce a single memorandum making a recommendation about whether the court should hear each of the more than 7,000 appeals that reach it each year. The memorandum is then used by all participating chambers.

Justice Stevens was for years the only justice to go it alone; Justice Samuel A. Alito Jr. left the cert. pool in 2008.

At first, Justice Stevens said, “I just didn’t join it because I thought it was not a time-saver, and I thought I could do the certs more promptly and more efficiently if I were not a part of the pool.” Later on, he said, he concluded that he was not sure “the cert. pool is the best mechanism for the court.”
There is a lot more great stuff in both of these articles. I urge you to visit both and read them in full, as well as dropping in on the various links to the individuals under possible consideration for nomination now... As my colleague who clued me in said, "let the games in the Senate begin!" Tip of the OOTJ hat to my Suffolk colleague Jeff Pokorak!

The photograph of President Barack Obama chatting with Justice J.P. Stevens and Justice Anthony Kennedy (with Justice David Souter, since retired, in the background)is from the second New York Times article, "Man in the News,End of an Era for Court and Nation."

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